[MassHistPres] TEA easement clauses

[Dennis De Witt]

Brookline's Selectmen recently approved the town's fourth facade  
easement to be held by the Trust for Architectural Easements (formerly  
National Architectural Trust) as the easement holder.  The three  
previous easements were all in LHDs, as is typical with TAE  
easements.  (During the course of our negotiations with them their  
counsel told us that 80-85% of their easements are in LHDs.)

When the last one came up we had requested and got clauses requiring  
that vinyl windows in that particular house would have to be replaced  
with windows consistent with our LHD guidelines when the time came to  
replace them (no like-kind replacement of vinyl with vinyl), that LHD  
design review would happen first, and that the Brookline Preservation  
Commission would become the successor easement holder if TAE should  
ever expire.

As this most recent easement (for an NR Greek Revival house) was not  
in an NRD we got an advisory design review role for the Commission  
written into the easement, as well as a modified version of the  
successor clause.

Here are the two clauses that were added to the standard TAE easement  
language.



The added language relating to advisory design review begins with  
"provided however . . . ." in the first paragraph:

Grantor and Grantee agree to abide by the Change Approval Guidelines  
attached hereto and incorporated herein as Attachment C, and such  
Change Approval Guidelines will not be amended without the express  
written consent of the Massachusetts Historical Commission (the  
“MHC”); provided, however, that nothing in the Change Approval  
Guidelines shall limit the Town of Brookline’s right, as set forth  
below, to provide meaningful comment on any Proposed Modification  
Request.

  In order to approve this Agreement, the Town of Brookline requires  
that Grantee shall provide notice to the Brookline Preservation  
Commission (the “BPC”) of any Proposed Modification Request submitted  
by Grantor and shall allow the BPC the opportunity to provide Grantee  
with (a) historic and architectural information regarding the Property  
and (b) a Statement of Applicability with respect to the Proposed  
Modification Request of any relevant provision of the BPC’s Design  
Guidelines for Local Historic Districts adopted by the BPC on October  
12, 2005 and attached hereto as Attachment E (“Brookline  
Guidelines”).  In connection with the Town of Brookline’s notice  
requirement, Grantor and Grantee hereby agree as follows:

(i) Grantee shall notify the BPC’s Preservation Planner at the  
Department of Planning and Community Development, Preservation  
Division, Town Hall, 333 Washington Street, Brookline, Massachusetts,  
02445 (“BPC Staff’) each time it receives a Proposed Modification  
Request or revision thereto from Grantor. (“PMR Notice”).  The PMR  
Notice shall be in writing, shall include the Proposed Modification  
Request form (excluding attachments) and may be sent via email to BPC  
Staff.

(ii) BPC Staff shall have three (3) business days following receipt of  
the PMR Notice to notify Grantee in writing, including email, that BPC  
either requests or does not request a copy of the Proposed  
Modification Request and to indicate which portions or attachments of  
the request to provide to BPC Staff.  Failure by BPC Staff to respond  
to the PMR Notice within 3 business days shall be deemed by Grantor to  
indicate that BPC does not intend to comment on the Proposed  
Modification Request.  If timely requested, Grantee shall provide a  
copy of the specified portions of the Proposed Modification Request  
(“PMR Plans”) to BPC Staff.  The cost of reproduction, if any, shall  
be the responsibility of Grantor, and all reasonable efforts will be  
made to deliver electronic copies of the PMR Plans to BPC Staff.

(iii) Grantee agrees to review and consider any historic and  
architectural research or information relating to the Property and the  
BPC’s Statement of Applicability of the Brookline Guidelines, if such  
information is provided to Grantee within seven (7) business days  
following the BPC Staff’s receipt of the PMR Plans.

(iv) If Grantee’s final determination regarding the Proposed  
Modification Request, as may be modified by Grantor, is inconsistent  
with the BPC’s Statement of Applicability, including subsequent  
communications between Grantor and BPC Staff, Grantee agrees shall  
send written communication to BPC Staff providing Grantee’s rationale  
for issuing a final statement of no objection to Grantor’s Proposed  
Modification Request.

Grantee and Grantor hereby further agree and acknowledge that the  
Property is not subject to the Town of Brookline Preservation  
Commission and Historic District Bylaw 5.6 as of the date of this  
Agreement.  Further, as stated above in this Section 1, Grantee’s  
consent shall only be given if in compliance with standards set forth  
in Applicable Preservation Laws and such consent may be withheld,  
conditioned or delayed in the sole and absolute discretion of Grantee.



And this is the added language relating to succession:

c) Grantee agrees that if in the future it shall be required, either  
for financial or legal reasons, to transfer all or substantially all  
of its assets to other qualified organizations it shall transfer,  
assign and otherwise convey its rights under this Agreement to the  
BPC, assuming that at the time of the transfer, the BPC (i) is a  
“qualified organization” described in Section 170(h)(3) of the  
Internal Revenue Code of 1986 and controlling Treasury regulations,  
(ii) is an organization whose purposes are to promote preservation or  
conservation of historical, cultural or architectural resources, and  
(iii) agrees to continue to carry out the conservation purposes for  
which this Agreement was created.


Dennis De Witt
Brookline
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